The Purpose of Harvard Law School
Marina N. Bolotnikova
The Purpose of Harvard Law School
This past year, Harvard Law School (HLS) experienced an intensely public moral crisis. After the portraits of African-American professors were found defaced in Wasserstein Hall, a racial justice movement calling itself Reclaim Harvard Law School formed in November. Even before, students had been calling on the administration to abandon the school’s shield, modeled after the crest of the slaveholding family that had endowed its first professorship. Reclaim’s advocacy helped that movement gain public legitimacy, and HLS dropped the shield a few months later. Reclaim’s full list of demands animated a new version of an old debate about HLS’s moral duties to its students and to the public. Among them: create an office for diversity and inclusion, reform the curriculum to include the study of race and inequality in the law, and abolish tuition.
In February, Reclaim began an occupation of the student lounge in the Caspersen Student Center. There, they created discussions on racial justice and hosted “teach-ins” on subjects like critical race theory, a movement in legal thought that attempts to understand the relationship among racism, political power, and the law. The group provoked a kind of moral outrage that hasn’t upset the conscience of HLS in a generation. For much of last year, most of the op-eds in The Harvard Law Record, the student newspaper, responded to the questions the movement raised.
The very buildings that hosted this debate provide evidence of a subject that isn’t being talked about with the same urgency: HLS’s relationship with the business community. The Caspersen Center, where Reclaim organizers ate, slept, and provoked conversation on race, was named for a donation from Finn Caspersen, LL.B. ’66, a billionaire businessman. Elsewhere at the law school, links to corporate-interest law are on prominent display. Kirkland & Ellis Hall, a classroom named for the Chicago-based law firm that represents some of the world’s biggest corporations, sits in the law school’s historic Langdell Hall; the same firm endowed an HLS professorship in the 1990s. Wasserstein Hall, the site of November’s racist defacement, was named for the Wasserstein family, which made its fortune in investment banking. Reclaim’s platform centers the language of race and diversity—on making HLS a safe community for students of color—in a way that seemed to eclipse broader questions of power and access to legal resources beyond Harvard. But many Reclaim organizers link the movement’s goals directly to corporate-law recruitment; Faye Maison, J.D. ’16, says, “Corporate culture is allowed to persist when we continue to study cases that are presented as very neutral, or pretend that the law doesn’t really affect people,” she says. “We’re not really taught to think seriously about the impact of our work. You might think that you’re sitting in an office in New York writing something that’s not hurting anyone, but you could be representing a mining company that’s destroying people’s lives. Reclaim’s goals are very much tied to that.”
There’s an inherent tension in HLS’s role as an institution devoted to advancing justice and public welfare, and its role as an elite professional school. Much as undergraduates from institutions like Harvard flock to high-paying business jobs, HLS graduates are drawn in vast numbers to corporate-interest law firms, almost exclusively representing wealthy clients. Of HLS’s class of 2015, more than 60 percent took jobs at private firms or in business. The vast majority of them work at firms of more than 500 lawyers in New York, Washington, San Francisco, and Boston. The class of 2015 had a median starting salary of $160,000, the standard offer for first-year associates—higher than the $130,000 median starting salary for Harvard Business School graduates.
Ralph Nader, LL.B. ’58, a long-time critic of HLS’s pipeline to corporate law, argues that last year’s activism missed an opportunity to question the prominence of corporate law or ask questions about students’ debt to society after graduation. Asked about how well HLS is meeting its stated mission of advancing justice and the well-being of society, Nader seemed surprised by the question: “Well, largely they’re training corporate lawyers,” he says plainly. Early last fall, he gave a talk on campus in which he asked, “What is the purpose of the Harvard Law School?” and urged students to allow their moral and civic conscience, and not the hiring demands of corporate firms, to answer that question. “Harvard Law,” he said then, “is not an institution that provokes any kind of consternation or fear among the power structure.”
The school’s administration points out that it offers a wealth of resources for public interest—and indeed students interested in public service have at their disposal a full office devoted to public-interest advising; generous loan forgiveness; and funding for legal-aid work after graduation. But between the well-established path to corporate law and the demands of a just society, HLS takes no position on where its graduates ought to work, and struggles to articulate a role for itself in a broader justice system. Career options are framed as a matter of personal choice or market demand rather than public need, reflected in the recruiting structure that accommodates corporate law. How pervasive should corporate law be at a top law school? What do Harvard graduates owe to the public? These are questions Harvard hasn’t answered—but the controversies of the last year, and the ones sure to come, suggest that perhaps it needs to.
“The Path of Least Resistance”
Pete Davis ’12, a rising second-year law student and an editor at The Harvard Law Record, speaks in broad moral overtures about Harvard’s larger obligation to promote equality in the justice system. It’s easy to maintain that HLS is a private institution whose graduates are entitled to make private decisions about their careers, he argues, but this ignores its political power, and the role that it plays in the broader legal system: “We are not really a private institution when we’re producing half of the Supreme Court justices, the president, and all of Washington.”
Davis critiques what he calls HLS’s “culture of corporate liberalism,” an ideology that preserves a partnership between corporations and public institutions. When the school sends most of its graduates to represent a narrow group of corporate managers and shareholders, he says, it doesn’t have a legitimate claim to advancing justice and social welfare. That ought to be a matter of public concern, he suggests, in a way that doesn’t blame individuals for their career choices, but instead asks why most students are drawn to corporate careers.
No one denies that HLS’s corporate law pipeline exists: “The path of least resistance will put you at a firm in New York,” says Mark Weber, head of HLS’s Office of Career Services (OCS). Large law firms can predict their hiring needs over a long time horizon, he explains, and they recruit students years in advance, almost from the moment they arrive on campus. OCS organizes local recruitment programs, which give law firms easy access to students and serve as their main point of contact with prospective hires. Each summer, the office holds its headline event, the five-day Early Interview Program (EIP), a recruiting program for firms and businesses—which is also, according to the HLS website, “the largest law school recruitment program in the country.” Weber estimates that about 80 percent of students participate in EIP, and of those who spend the following summer interning at a firm, nearly all get full-time offers.
“The path of least resistance will put you at a firm in New York.”
Graduates who clerk for a judge for a year or two after graduating (23 percent of the class of 2015) are somewhat more likely than their classmates to take public-interest jobs, but the majority of them subsequently enter corporate law, too (and receive lavish signing bonuses for clerking experience), making the proportion of students who work in corporate law closer to 70 percent of the class—or even more. HLS has limited data on alumni career trajectories over longer periods. Earlier classes were roughly as likely as today’s graduates to work at firms as a first job, and many later leave firms for business, or, particularly for women, the public sector. Among the class of 1985, 29 percent of men and 46 percent of women now work in public-interest organizations, such as government and legal aid. From the class of 1995, 14 percent of men and 37 percent of women work in such occupations.
Harvard’s situation is typical among the most selective law schools. Just over 60 percent of Stanford’s class of 2015 worked in private firms or in business nine months after graduation, nearly identical to Harvard’s cohort. Columbia reports more than 80 percent of the class so employed. At Yale, which is known for promoting a scholarly environment, 45 percent of graduates were employed by private firms or business, and 39 percent, the second largest cohort, worked as judicial clerks. For HLS students graduating in the last several classes, top firms offered starting salaries of $160,000; this year, that increased to $180,000. Graduates who take judicial clerkships and other government positions (about 27 percent of HLS’s class of 2015) earn a little more than $60,000. The remaining 11 percent, who work in public-interest positions like legal aid and public defense, typically start at $45,000—one-quarter what classmates who head to corporate law firms now command in their first year.
One explanation given for the dominance of the corporate sphere is that some need to take high-income jobs to meet financial obligations to their families. “There are a lot of students who are in a situation like this,” says HLS dean of students Marcia Sells. Empirically, this is hard to verify; little information is available about student demographics. Some limited data on financial aid suggests that HLS students largely come from families much wealthier than the national average. And this kind of reasoning can subsume questions about public need to private concerns.
But it isn’t simply the money that draws students to corporate firms. Students report that private-sector recruitment feels all but mandatory. HLS sends emails to all 1L students encouraging them to participate in EIP. Students who don’t sign up then get an email telling them that they’re among the students who haven’t signed up. The institutional signals are so strong that students who choose not to participate have a tradition of organizing a poster campaign for the 1L class, titled “You Are Not Alone,” listing the names of students who did not attend EIP. Says Faye Maison, “It’s telling that the names of all 2Ls and 3Ls who did not participate in EIP can fit on one poster.”
“A Very Strong Corporate Culture”
Olivia Warren, a rising 3L who spent this summer interning at the federal public defender’s office in Boston, plans to work in indigent defense after graduation. (Of her career goals, she says, “I want to get everyone out of jail.”) “Dean [Martha] Minow welcomed our class with, ‘We searched the world for you,’” Warren recalls. “But they searched the whole world for us to do what? There’s absolutely no interaction with the words that are used to describe the law school and the outcomes for the majority of law students.”
“The groupthink of the school and EIP in particular is really not something to be undermined,” Warren says, recalling a story of a friend who participated in the program last year: “She began EIP really ambivalent about whether she wanted to go to a firm, didn’t really care, and was just going to see what happened. By the second night she said, ‘If I don’t get an interview at a top-10 law firm, I’ll be so embarrassed. I’ll be a total failure.’ I said, ‘What happened to you in 48 hours?’”
There are subtler ways that students say the corporate sector becomes their default option. First-years are required to take a problem-solving workshop for academic credit that is meant to expose them to real problems that practicing lawyers work on. The projects tend to involve scenarios from corporate law, and culminate in presentations before an audience at a corporate firm. Davis, whose problem-solving workshop last winter took place at the Boston-based firm Foley Hoag, calls the program a “mandatory corporate-law field trip.”
“There’s absolutely no interaction with the words that are used to describe the law school and the outcomes for the majority of law students.”
Dean Minow, whose own work has focused on public law (she is vice chair of the Legal Service Corporation), cautions against creating a false dichotomy between private- and public-interest law. “It is important,” she wrote in an email, “to avoid the mistake of imagining that there are two separate worlds of public and private legal work. I know from my own public-service work how critical are collaborations with the private bar in litigation, advocacy, fundraising, and any reform agenda.”
It is indeed easy to caricature firms for representing the most publicly reviled industries (think tobacco and fossil fuels), but this is a caricature. Foley Hoag frequently represents public clients, and this summer helped the government of Uruguay win a case against Philip Morris, which had challenged the country’s tobacco-control laws. Students show sincere interest in working on high-profile cases like these. (During recruitment, firms often appeal to students by publicizing their pro bono work. But this can create confusion about what they really do: the industry standard for pro bono engagement is 3 percent to 5 percent of billable hours, and, according to the Pro Bono Institute, many firms do not even meet these goals. The firms stay in business by representing clients who can pay for their services.)
Ariel Eckblad, J.D. ’16, who took a postgraduate job in conflict resolution at the State Department, links HLS’s corporate recruitment structure directly to the legal curriculum: “The legitimacy of our legal system hinges on assumptions around neutrality, and it’s a scary thing to think about what it means to confront the fact that the law is created by people with biases and enforced by people with biases,” she says. “We’re discouraged from thinking that way, and I think that people who might have a problem working as a corporate lawyer suddenly are encouraged to think that’s a neutral choice.” There’s no curricular requirement that J.D. students be exposed to critical theories, but it depends on which professors students are assigned to for their core classes. Professors like Randall Kennedy and Jon Hanson, who built their careers on dismantling notions of legal neutrality, introduce their own models in class. Colin Doyle, a rising 3L, says, “In my experience, you’re lucky to survive law school with any kind of reverence for the law.”
Anecdotally, students who follow through with their public-interest aspirations appear more likely to have taken at least a few years off to work between college and law school. They’re clear-headed about their goals and convictions about the justice system, and less afraid of navigating an unstructured job search. Even then, they characterize the pressures to go through EIP as overwhelming. “Everyone was doing it, all of these people who are smart and I look up to and are even social justice-y are doing EIP. What memo did I miss if I wasn’t doing EIP?” says Isabel Broer, J.D. ’16, who now clerks at the Colorado Supreme Court. “It was, frankly, difficult to come back that fall. My friends were still going through it, talking about being flown across the country and being wined and dined by the law firms and comparing the salaries they’d be making, and I thought, oh my gosh, how have we accepted that this is reality and something that we’re entitled to?”
Doyle, who is interested in public defense, resists the narrative that the school itself is responsible for students’ career choices. “Public-interest law is incredibly hard,” he says, “much more so than the Harvard administration having an entire office devoted to public interest but still allowing OCS to send you emails. Being a public-interest lawyer requires more backbone than that.”
The public-interest job search looks very different from the structured environment of corporate recruiting. There’s a small public-interest recruiting program, says Alexa Shabecoff, who directs the Office for Public Interest Advising (OPIA), but in most cases, students devote a lot of time to researching their own opportunities. The office sees about 70 percent of each class, she says, which suggests wide interest in public interest (including work in both government and private-legal aid organizations). Shabecoff, who has been with OPIA for more than 20 years, and thinks seriously about the limitations of the HLS environment, says, “Yes, students definitely feel pressure here to go into big law—no question. We put more resources and support into public interest than most law schools, but students still feel the school is signaling that they should go into big law.” Of the winter problem-solving workshop, she says, “I can’t believe they do that.”
Isabel Broer worked in Colorado public education for a few years after college, and knew she wanted to return there to work in education policy after HLS. She worked with Shabecoff to find summer work at the Colorado Department of Education, and later with a state senator, to figure out how to approach public agencies that had never worked with interns, and to create a job for herself that she found worthwhile. “OPIA was a phenomenal sounding board,” she says. Much of HLS’s success in public interest depends simply on interactions like these, on finding the imagination to create opportunities and connect to places that lack a prior Harvard connection. Pete Davis makes a similar observation: “If I’m the governor of Arkansas, what does Harvard do for me? It takes my brightest kids and sends them to New York,” he says. “The answer is for Harvard to be a good neighbor to our country,” not just to the few coastal cities where the largest firms cluster.
HLS created OPIA in 1991, and began to make significant investments in public-interest advising in the 2000s, Shabecoff says, under the direction of then-dean Elena Kagan. The most important program for students planning to work in such sectors is the Low-Income Protection Plan (LIPP), the most generous loan-forgiveness system of any U.S. law school. The program limits loan payments to a small percentage of income, and cancels the rest. In the 2016-17 year, alumni earning less than $47,000 won’t have to pay back any of their debt. For most students, it would be impossible to work in public-interest positions without the program: HLS’s total annual cost of attendance will reach nearly $90,000 next year, and for borrowers in the class of 2015, average indebtedness at graduation was $150,000.
HLS has the resources to spend much more on public interest than other schools: it guarantees a modest summer stipend to all students who intern in public-interest positions, and awards $1.4 million in postgraduate fellowships for students pursuing work at public-interest institutions every year. Its Public Service Venture Fund awards students grants to start legal-aid practices. OPIA awards about 20 fellowships and two start-up grants annually. Programs like these are critical, Shabecoff stresses, because they expand the market for public-interest jobs, and create resources for legal aid that weren’t there before. But there’s only so much these efforts can do when the basic problem is a failure of political will to pay for legal aid. The Legal Services Corporation, the federal agency charged with funding legal aid to all of the nation’s poor, was funded at $375 million in 2015—about 1 percent of the profits earned by the top 100 law firms. Due to a lack of funding, the vast majority of clients who qualify for legal aid in Massachusetts are turned away each year.
Administrators say they regret that students can feel limited in their career options. Mark Weber’s staff make sincere efforts to advise students according to their values and interests—a lot of students come to HLS for the financial and intellectual rewards of corporate law. But, Weber says, the availability of jobs ultimately is driven by the demands of the legal market. “The pressures aren’t coming from the law school,” he argues. “They’re the reality of how hiring works.” Graduates typically have large debt loads, he adds, and many simply want to live a comfortable lifestyle. “Who am I to make a value judgment?”
But Harvard is also itself an influential player in legal hiring. It has the biggest class sizes of any top law school, giving it particular latitude to shape rules for firms that vie for its graduates. OCS policy, Weber explains, requires firms going through the recruitment program to allow students to keep one job offer open until April 1, so that they have time to weigh public-interest job offers, which are made much later in the year than law firms’ offers.
Olivia Warren suggests abandoning the Early Interview Program altogether, so that students think with more intention about their professional choices. It’s not appropriate, she argues, to grant Harvard students easier access to a sector which already has vast power and resources. “Because the jobs are so easy to get, compared to public-interest [jobs], why couldn’t the school say, ‘If you’re interested in going into the private sector, here are the firm letters, here are the addresses for the firms, and you can submit your materials and coordinate with the firms’?” (How much Harvard alone could affect the legal market with such a change isn’t clear, of course—but it’s one way in which the school might begin to think about limiting the influence of firms.)
More broadly, “Harvard could do anything it wanted” to try change the balance of jobs in the legal system, Warren argues: what if it asked firms to pay for their recruits to do a year of pro bono work? What if it made larger investments in public-interest funding, to pay for legal aid that’s not being funded publicly? She adds: “It’s not just about public defense, and other fields we see, like immigration, that are hungry for lawyers but have no funding. There are also whole areas that don’t exist yet. The rural poor needs help from lawyers on almost all issues of their lives—family law, property law, basic estate planning—and there’s absolutely no model for providing legal services there. To think that we couldn’t inspire Harvard Law students to at least begin thinking about that seems like a very narrow view of our capacity.”
Pete Davis calls for a broader view of the law school’s responsibilities in the justice system. The nation can’t sustain a just legal system unless its civil institutions are committed, actively, to promoting access to legal resources: “Harvard pretends not to take policy positions, but it does. We took a position on the DREAM Act, for example, which said that to fulfill our duties as a university, we need immigration reform,” he says. “The issue of funding public defense is very simple to solve. There is already a Legal Services Corporation, there’s already a source of funding for public defenders, but they don’t have enough money, and because they don’t have enough money, the legal system is skewed. The deans of the top five law schools could all go to Congress and say, ‘We cannot keep producing lawyers for a legal system that isn’t working,’ and call on lawmakers to adequately fund public defense.”
“There is already a Legal Services Corporation, there’s already a source of funding for public defenders, but they don’t have enough money, and because they don’t have enough money, the legal system is skewed.”
Minow did not comment specifically on whether HLS would take such a step, but providing equal access to the justice system is a matter of deep personal significance to her. She argues emphatically, to her students and the public, that America is not living up to its mandate to provide legal representation to the poor. HLS already plays a role in filling this need, she recently wrote in an email: “The changes that are needed and that are possible are profound and hold promise of reshaping how law is administered and practiced, who has access to legal representation, and what law schools can do; HLS is deeply involved in this work.” She points to initiatives like the Criminal Justice Policy Program, which engages in research and policy recommendations on criminal-justice reform, and the Veterans Legal Clinic, which provides legal aid to veterans and their families. Students are required to complete 50 hours of pro bono work—but most, she says, do significantly more. HLS’s clinics and Legal Services Center, which is supported through a partnership with Boston law firm WilmerHale, do a great deal of good for low-income people in Boston, and provide important pro bono experience to students who might not work with poor clients during their careers (though it’s more difficult to argue that they have a transformative influence on the legal system).
HLS’s Third Century
It is easy, in talking about the recruitment structure at HLS, to begin to sound conspiratorial about Harvard’s relationship with corporate law firms. During interviews for this story, it was often claimed that HLS has a direct incentive to send graduates to corporate law because school rankings depend on alumni salaries. But this is not true: the most popular ranking system, published by U.S. News & World Report, does not include salary data. Certainly, both Harvard and the firms benefit a great deal from the recruitment system: the firms get access to the nation’s most ambitious law students, and the University enjoys a reliable stream of donations from firms and wealthy alumni.
But HLS appears eager, if anything, to help students take advantage of its vast resources to break into public-interest work, and earn a reputation as a school with moral authority. LIPP has helped accomplish this by freeing students of the financial burden of public service, and it has applied pressure on other schools to introduce loan forgiveness. But when the choice between corporate and public-interest law is framed simply as a matter of personal preference or an inevitable outcome of the market, and distinctions between public and private interests are elided, students lose faith in the institution’s sincerity. And given the magnitude of the imbalance of resources in the justice system, the answers offered by elite law schools appear narrow and lacking moral clarity.
If there’s any overarching lesson from the Reclaim movement, it’s that activism has the capacity to expand ideas of what’s possible, to make the once unimaginable appear urgent and within reach. Pete Davis, for his part, says he plans to become directly involved in activism this fall, to call on the administration to live up to the school’s public-interest mandate. HLS will celebrate its bicentennial next year, welcoming a third century of scholarship and legal education—an occasion, perhaps, to reckon with its purpose as a law school.